David M. Paciocco

The appellant, convicted of aggravated assault and sentenced to three and a half years, appealed his sentence, questioning the sufficiency of "Downes credit" and seeking a further reduction based on post-sentencing rehabilitation efforts.

The Court of Appeal deferred to the trial judge's decision on Downes credit, finding no error in principle, and determined that the post-sentencing rehabilitation, while commendable, did not warrant an additional sentence reduction in this case.

The Crown appealed a $7,500 fine imposed on a corporate defendant for an Occupational Health and Safety Act violation, arguing the lower courts erred in assessing the corporation's size and applying the parity principle between individual and corporate offenders.

The Court of Appeal allowed the appeal, finding that the lower courts incorrectly restricted consideration of the corporation's economic activity to the local operation and improperly relied on sentencing precedents for individuals.

The fine was increased to $40,000.

The appellant, Jeffrey Reimer, appealed his convictions for sexual assault with a weapon, unlawful confinement, and extortion.

The core issue on appeal was the trial judge's exclusion of sexualized text messages exchanged between the appellant and the complainant under s. 276 of the Criminal Code.

The trial judge had ruled the messages irrelevant, offered for an illegal purpose (proving prior consent), and dependent on prohibited "twin-myth" inferences.

The Court of Appeal found that the trial judge erred in excluding this evidence.

The Court clarified that statements of present intention to engage in future sexual activity are logically relevant to the issue of consent and do not automatically trigger the "twin-myth" inference or violate the contemporaneity rule, as their relevance does not stem from the sexual nature of the activity itself but from the stated intentions.

Consequently, the appeal was allowed, the convictions were set aside, and a new trial was ordered.

Steve Kavanagh appealed his conviction for child luring and making sexual material available to a child, and sought leave to appeal his sentence.

He argued the trial judge erred in directing the jury on the reasonable steps requirement for mistaken belief in age, and in denying a "lost evidence" application.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's charge on mistaken belief in age was correct and that the "lost evidence" application was properly denied as the Charter does not generally apply to foreign officers' conduct.

The Court also granted leave to appeal sentence but dismissed the sentence appeal, upholding the trial judge's decision that a conditional sentence was inappropriate given the nature of the sexual offences against children.

This appeal concerned an insurance coverage dispute following a cyberattack on CarePartners, a healthcare company.

A class action was commenced against CarePartners, and Aviva, their insurer, denied full coverage due to a Data Exclusion Endorsement.

The parties entered a funding agreement for defence and settlement on a 60/40 basis, without prejudice to coverage issues.

Aviva sought a declaration in Superior Court regarding its duty to defend and indemnify.

The application judge found no duty for personal injury claims but a duty for bodily injury claims, without allocating costs.

CarePartners cross-appealed, seeking reimbursement of their 40% settlement contribution and arguing that a new application by Aviva for allocation was res judicata.

The Court of Appeal dismissed CarePartners' cross-appeal, affirming the application judge's coverage decision and ruling that the allocation issue was not before the lower court, thus res judicata did not apply.

Cory Crockatt appealed his convictions for breaking and entering, possession of stolen property, and failing to comply with release conditions.

The appeal challenged the trial judge's assessment of identification evidence, the scope of alternative possibilities considered in the circumstantial case for the break-in, and the reasonableness of the stolen car possession verdict.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's reasoning regarding identification evidence or the circumstantial case, and concluding that the verdict for possession of stolen property was reasonable based on the cumulative evidence.

The appellant, Bill Allison, appealed his conviction for firearms trafficking offences, including conspiracy and offering a restricted firearm for sale, in association with a criminal organization.

The case relied on circumstantial evidence from intercepted telephone communications, which the appellant argued were ambiguous and did not establish guilt beyond a reasonable doubt.

The appellant claimed the firearms were for personal use or that conversations related to drug trafficking.

The Court of Appeal upheld the trial judge's findings, concluding that her methodical assessment of the evidence, including expert testimony on coded language and Jamaican Patois, was exemplary and that the verdict was not unreasonable despite some ambiguities.

The appellant insurer appealed a decision that found it had a duty to pay defence costs for the respondents in underlying lawsuits.

The insurer had denied coverage based on alleged material misrepresentation in the insurance application regarding the source of financing for the respondents' real estate development companies.

The Court of Appeal found that the failure to disclose syndicated mortgages as the financing source constituted a material misrepresentation by omission, triggering an exclusion clause in the D&O insurance policies.

The appeal was allowed, and the insurer was declared to have no duty to pay defence costs and was entitled to recover previously advanced funds.

The appellant, found not criminally responsible (NCR) for aggravated assault and weapon possession, appealed the Ontario Review Board's decision to continue his detention order at a forensic hospital.

He argued the Board made material factual errors and that he should be granted an absolute discharge.

The Court of Appeal dismissed the appeal, finding that while the Board made mischaracterizations of the evidence, these errors did not impact the reasonableness of its risk assessment or disposition.

The court concluded that the Board understood the correct factual context when its reasons were read as a whole, and that the detention order remained the least onerous and restrictive disposition consistent with public safety, given the appellant's ongoing substance abuse and lack of insight into his mental illness.

The appellant sought leave to appeal his sentence of seven years imprisonment for possession of cocaine for the purpose of trafficking and possession of proceeds of crime, which was consecutive to a prior four-year sentence for similar offences.

The appellant argued the sentencing judge failed to apply the totality principle, resulting in an unfit total sentence of eleven years.

The Court of Appeal found that the sentencing judge did consider the totality principle and that the combined sentences were fit, emphasizing denunciation and deterrence given the quantity of drugs, commercial gain, and the commission of new offences while on release.

The appellant, a lawyer, sought declarations and mandamus to compel the production of aggregated civil trial data from the Ontario Ministry of the Attorney General (MAG) for research purposes, after his initial requests were denied by MAG and the Chief Justice of the Superior Court.

The application judge denied the requests, finding that declaratory relief would serve no practical purpose and that the open court principle did not extend to requiring the aggregation of bulk data.

On appeal, the Court of Appeal dismissed the appeal, upholding the application judge's discretionary decision to deny the declarations on the basis that they would serve no practical purpose.

The court emphasized that control over judicial information rests with the judiciary, not MAG, rendering declarations against MAG ineffective.

The Attorney General of Canada was initially named as a respondent but the application against it was abandoned.

This is an appeal from an order dismissing a motion to set aside a noting in default.

The appellants (defendants in the original action) had repeatedly delayed filing a defence, despite extensions and changes in counsel.

The motion judge applied the principles for setting aside a noting in default, considering the full context, including the parties' behaviour and reasons for delay.

The Court of Appeal found no error in the motion judge's comprehensive analysis and dismissed the appeal, affirming that the plaintiff was entitled to proceed given the defendants' prolonged non-compliance.

The appellant, Brian Kumar, sought a review of a single judge's order requiring him to post $5,000 security for costs before proceeding with his motion for leave to appeal a Divisional Court decision.

The underlying action involved allegations of fraud and breach of fiduciary duty against Kumar, whose statement of defence was struck due to non-compliance with court orders.

The Court of Appeal panel dismissed Kumar's review motion, affirming the original order for security for costs due to his consistent pattern of non-compliance with court orders.

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The Court of Appeal for Ontario heard a motion to quash an appeal brought by the respondents (defendants in the original action) on jurisdictional grounds.

The appellant (plaintiff) sought to appeal an interlocutory order from the Superior Court of Justice that removed his counsel of record.

The Court of Appeal confirmed that an order for the removal of counsel is interlocutory and must be appealed to the Divisional Court with leave, not directly to the Court of Appeal.

Consequently, the motion to quash the appeal was granted, and costs were awarded to the moving parties.

The appellant, Jordan Osborne, appealed his first-degree murder conviction on two grounds: the voluntariness of his police statement and alleged abuse of process by the Crown.

The Court of Appeal upheld the trial judge's finding that the police statement was voluntary, concluding that no implicit inducement or misrepresentation rendered it involuntary, and that the confession was made due to the strength of the case.

The court also dismissed the abuse of process argument, finding no inconsistency in the Crown's position at trial compared to a co-accused's guilty plea, and no compromise to trial fairness or judicial integrity.

The Court of Appeal for Ontario allowed an appeal, reversing a Divisional Court decision that had quashed an umpire's assessment of actual cash value (ACV) for a fire-damaged business premises under section 128 of the Insurance Act.

The Court found that the Divisional Court erred by giving undue weight to market value and by failing to defer to the umpire's reasonable assessment.

It clarified that "actual value" means the value to the insured, which can exceed market value, and that repair estimates are relevant to ACV.

The umpire's pragmatic approach in choosing between parties' proposed ACV amounts was upheld as non-arbitrary, reinforcing the deferential standard of review for such appraisals.

The Court of Appeal dismissed an appeal by Unit Precast (Breslau) Ltd. and a cross-appeal by Click+Clean GmbH.

Unit Precast appealed the striking out of its claims for conspiracy and intentional interference with contractual relations, and claims asserted personally against Lars Bergmann, arguing the motion judge erred in failing to recognize its business as part of RH20 North America Inc.'s.

Click+Clean GmbH cross-appealed the dismissal of its motion to stay the action in favour of arbitration, contending the motion judge erred in finding the arbitration agreement inoperative.

The Court of Appeal upheld the motion judge's decision, finding Unit Precast's claims were not adequately pleaded and that Click+Clean GmbH waived its right to arbitrate by seeking substantive relief (motion to strike) from the court.

The Court of Appeal considered multiple motions brought by the appellant, Eric Collins, including an extension of time to appeal a final parenting decision, a stay of interim child support orders, and a request to combine appeals.

The respondent, Amber Tiveron, opposed these motions and brought her own motion for security for costs.

The court denied Collins' request for an extension of time, citing jurisdictional issues and the best interests of the children.

His motion for a stay of orders was also denied, as the appeal lacked serious merit and any potential harm was reparable.

Tiveron's motion for security for costs was denied because Collins' appeals were either not properly filed or vulnerable to being quashed, and the underlying grounds were not deemed frivolous or vexatious despite past litigation conduct.

All motions were dismissed, and costs were awarded to Tiveron.

The appellant was convicted of conspiring to import narcotics in association with a criminal organization.

On appeal, he argued the trial judge erred in his jury instructions regarding the co-conspirator's exception to the hearsay rule (the Carter analysis) and that the conspiracy conviction was inconsistent with his acquittal on a related trafficking charge.

The Court of Appeal dismissed the appeal, finding the jury instructions were functional and not confusing, and that the disparate verdicts were intelligible given the distinct evidence and theories for each charge.